When Barack Obama becomes the 44th President of the United States, he'll face daunting challenges: a shattered economy, wars in Iraq and Afghanistan, and global climate change, to mention only three. Nonetheless, many Americans feel Obama should immediately address the improprieties of the Bush Administration, particularly authorization of the use of torture. There's increasing support for a day of reckoning for George Bush and his cohorts.
While Americans have a long list of complaints about Bush, there are two central grievances. One is that the 43rd President proved incompetent as the Federal "CEO." While disastrous, his ineptitude was not a violation of the law.
The other complaint is that Bush abused Presidential power. Most progressive lawyers disapprove of the Administration's conduct of the "war" on terror. Eric Holder, Obama's nominee for Attorney General, observed: "Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the procedures that violate both international law and the United States Constitution."
There are two schools of thought about what to do about Bush's misconduct. One, reflected in the writing of former Bush legal adviser Jack Goldsmith, argues that while war-time decisions sometimes are erroneous, there has been a historical pattern of shielding the decision makers - from Abraham Lincoln through Ronald Reagan. Goldsmith contends that whatever abuses Bush committed have largely been corrected. And, to enact harsh judgment on decision makers would curtail their future performance, particularly officials gathering intelligence in the CIA and Justice Department.
The other school of thought, represented by Georgetown law professor David Cole argues that the federal system of checks and balances was broken by Bush and cannot be reformed, "unless we are willing to account for what we did wrong in the past."
While President-elect Obama wants to develop a bipartisan atmosphere on Capitol Hill and, therefore, may be reluctant to investigate Bush improprieties, the subject is too important to be put off. Steps need to be taken to curtail the expansion of executive power by future Presidents.
Because Congress offered little objection to Bush's abuse of the role of commander-in-chief, it will not be sufficient to have only a congressional inquiry. David Cole recommends, "an independent, bipartisan, blue-ribbon commission to investigate and assess responsibility for the United States' adoption of coercive interrogation policies. If it is to be effective, it must have subpoena power, sufficient funding, security clearances, access to all the relevant evidence, and, most importantly, a charge to assess responsibility."
Ideally, a torture commission would serve two functions: It would enumerate the sequence of decisions that resulted in the coercive interrogation policies - identify the key decision makers and make clear the involvement of President Bush, Vice President Cheney, and former Secretary of Defense Rumsfeld. (Many of their actions have already come to light.)
The torture commission should also recommend how to prevent a recurrence of these actions. This is a particularly challenging problem because the most egregious abuses happened during wartime when the decision makers believed the United States was threatened with imminent attack - Bush's actions followed his donning of the mantle of commander-in-chief after 9/11. Two problems are apparent: the decisions were made in an atmosphere of tight secrecy - Congress had little involvement - and they lacked careful consideration - many of the decisions, such as The Patriot Act, were rushed.
At the heart of the Bush improprieties lies a vexing ethical problem: the U.S. legal tradition of granting executives immunity. If confronted with his decision to authorize torture, Bush can argue that his lawyers told him this action was within his constitutional authority and, therefore, he believed he was doing the right thing. By taking this position, Bush and other CEOs typically face no charges; they take advantage of a legal loophole. If you poison someone, as an individual, you can count on jail time. But, if as a corporation executive you authorize policies that poison hundreds of people - by, for example, dumping toxic waste in a water source - you go free or receive only a slap on the wrist. Thus an individual soldier, convicted of torture, goes to jail, but the President, Vice-President, and Secretary of Defense, who authorized torture of hundreds of prisoners, are granted immunity.
Our tradition absolves top executive from responsibility for faulty decisions. It's a unique "get out of jail free" card granted to the American executive class. The logic seems to be that our Presidents and our CEOs won't think creatively if they're constantly worrying about possible legal consequences. The result is to hold no one responsible for decisions that harm the common good.
The Torture Commission should challenge the notion of executive immunity and recommend holding the President, and his cronies, fully responsible for the adoption of coercive interrogation policies. Checks and balances have to be restored. There should be a day of reckoning for the Bush Administration.